Will the RTKL be Amended in the Next Legislative Session

At the beginning of the last legislative session, Senate Majority Leader Domenic Pileggi introduced a bill (SB 444) that proposed numerous revisions to the most recent version of the RTKL enacted in 2009. Although the Senate unanimously passed the amended version of the bill in late September 2014, the House took no action before the end of the session.  With the Senate electing new leadership recently resulting in Senator Pileggi losing the Majority Leader position, it remains to be seen whether this bill, or some form of it, will be reintroduced when the next session begins in January by the new leadership.  In the event it is, below is a summary of the more impactful provisions contained in SB 444.

1. Commercial requests – Requesters will be required to indicate whether the request is for a “commercial purpose” defined as “the use of a record: (i) for the purpose of selling or reselling any portion of the record; (ii) to obtain the names and addresses from the record for the purpose of solicitation; or (iii) in a manner through which the requester can reasonably expect to make a profit.” Agencies will be able to charge fees for commercial requests for search, review, and redaction at a fee no more than the hourly wage of the lowest paid public employee who is capable of responding to the request. Requests for educational, non-commercial scientific, or news media purposes will not be considered commercial requests and labor/search charges for these requesters will continue not to be permitted. The bill will limit the use of the RTKL to Pennsylvania citizens.
2. Third-party contractors – Section 506(d)(1) will be amended to require agencies to disclose copies of contracts entered with private contractors and any public records relating to the contract. Public access advocates believe this will restrict access permitted under existing case law.
3. Penn State and other state related universities – Campus police departments for Penn State, Pitt, Temple and Lincoln will be subject to the RTKL, but the criminal and non-criminal investigative exemptions under 708(b)(16) & (17) would still block most records of these departments. Note, a number of other bills were introduced during the last legislative session to make state related universities fully subject to the RTKL.   Additional provisions will require state-relateds with more than 2,500 employees to make information public including: Form 990 information; the salaries of all officers and directors; the highest 200 salaries paid to employees; annual revenue and expenditure budgets; annual revenue and expenditures; audited financial statements, and aggregated financial data for academic and administrative support units.
4. Disruptive Requests/Inmate Access – Provisions that would permit an agency to seek a protective order to prevent repetitive requests were not included in the version passed by the Senate. Inmate access to public records will be restricted to a defined list of records related to the particular inmate making the request and correctional institution policies.
5. Public Utility and Tax Records – The bill will exempt public utility records from public disclosure and create procedure for creation of “clearance certificates” indicating whether fees and charges are owed or have been paid. Similar provisions for tax records were omitted from the final version of the bill that passed the Senate.
6. Appeals – The time for filing an appeal with the Office of Open Records would be increased from 15 to 20 business days from the post-mark of the agency’s response or deemed denial. The appeals officer would be able to extend the deadline to issue a final determination by 15 days, or by 90 days if a hearing or in-camera review is necessary, or to stay an appeal if the issue on appeal is substantially similar to a pending appeal before the Commonwealth Court.
7. Electronic record – The bill would require an electronic record to be provided to a requester in the file format it exists if requested in that format.
8. Office of Open Records – The OOR would be given express authority to conduct in camera review, order agencies to submit records for such review, and to participate as amicus curiae in appeals if approved by the court in which the appeal is pending.